Digests

Railways

Appeals from interim, final decisions of Canadian Transportation Agency regarding determination of net salvage value (NSV) of railway line—In cross-appeal, respondent attacking Agency’s final decision—In 2007, respondent publishing “Notice of Discontinuance of Railway” in respect of line in issue pursuant to Canada Transportation Act, S.C. 1996, c. 10, s. 143(1)—Since reaching no agreement with interested person within required time, respondent offering to transfer all of its interests to governments, as stipulated in Act, s. 145—Whether Agency erring in not taking into account in its determination of NSV, statutory payment obligation found in Act, s. 146.1, by-laws in municipalities through which line runs—Parliament’s intention clearly expressed in Act, ss. 146.1, 146(1)—Act, s. 146.1 only applying if notice of discontinuance provided under Act, s. 146(1)—However, such notice can only be given “if a railway company has complied with the process set out in sections 143 to 145, but an agreement for the sale, lease or other transfer of the railway line or an interest in it is not entered into through that process”—Not possible to give notice of discontinuance pursuant to Act, s. 146(1) since process not reaching stage of agreement—Agency’s conclusion not only reasonable but also legally correct—Costs of levelling rights-of-way denied herein on basis by-laws not applying because no discontinuance of line as required—For purpose of determining NSV “to be used for any purpose”, eventual discontinuance, even dismantling of line presumed as to ensure compliance with Act, s. 145—In quest for fairness, equitable line short of full compensation needs to be drawn somewhere—Parliament’s intent in this respect appearing in partial compensation provided for in Act, s. 146.1—Agency’s expertise helpful in this process, bearing heavily on final determination of NSV—Levelling of rights-of-way possible consequence of presumed discontinuance, dismantling of line, appellant’s claim should also have been analysed from that perspective—Agency possessing discretion to determine costs relevant to determination of NSV—Agency can refuse to award costs unreasonable in light of facts, law—But, it can not disregard claims, which may be relevant as result of presumed discontinuance of line for purpose of NSV determination under Act, s. 145, on basis by-laws advanced in support of claim inapplicable as written, therefore irrelevant—Appeal allowed; cross-appeal dismissed.

Bengough (Town) v. Canadian Pacific Railway Co. (A-508-08, A-506-08, A-561-08, 2010 FCA 80, Létourneau J.A., judgment dated March 19, 2010, 38 pp.)